European Parliament software patents vote will be close

With most of the main political parties divided, Wednesday's vote at the European Parliament on a Union-wide law on computer-implemented inventions is expected to be a close call.

The law that must be decided on will influence the development of Europe's software industry. Opponents of the law claim it will kill off innovation in software development by handing too much power to large, litigious patent holders. Supporters argue that even small software developers stand to benefit from being able to protect their inventions with patents.

The European Commission, the original author of the directive, claims it struck a difficult balance between the views on either side of the debate when it finalized its text two years ago.

It calls for computer-implemented invention patents to be awarded only to ideas that are new, not obvious, and most importantly, to those that have a technical effect. This means that software worthy of a patent must be connected to a technical device that makes or does something new.

In a recent interview, the commissioner in charge of drafting the text, Frits Bolkestein, said fears are misplaced that this law would push Europe toward the U.S. patent system, where people can register so-called business methods based on software programs.

"No software by itself should be patentable," he said. He warned Members of the European Parliament (MEPs) not to upset the delicate "middle-of-the-road" position the Commission had forged. On Tuesday he told MEPs that some of the amendments they are considering are "unacceptable," and warned that if the Parliament couldn't adopt the proposed law then it could be cut out of the lawmaking process altogether by the 15 member states of the Union.

"Either we use the community method or we take a back seat and watch Member States go through the negotiation of an Intergovernmental Treaty," he said.

The amendments to be voted on Wednesday include one tabled by socialist MEP Arlene McCarthy seeking outlaw patenting of algorithms. The Commission's text doesn't say whether these mathematical formulae should be patentable or not.

"An algorithm is inherently nontechnical and therefore cannot constitute a technical invention," the amendment states.

McCarthy has led the debate on the directive in the European Parliament. She favors a text that steers close to the Commission's original version, but one that sides more with the patent opponents.

Like Bolkestein, she is against going down the U.S. route, and cited the "one click" Amazon.com Inc. patent as an example of a bad patent law.

Amazon.com registered a patent for the one-click business method. In 1999 it sued Barnes & Noble.com Inc. for breaching its patent. The two firms settled out of court and Barnes & Noble is again allowed to offer online shoppers a one-click route to making a purchase.

McCarthy rejected the criticisms from open-source and free software developers, and from small and medium-sized enterprises (SMEs), which have accused her of selling out to big business. She told fellow MEPs during a Tuesday debate of the issue that she received letters from SMEs calling for such legislation.

Joachim Wuermeling, from the main conservative party, the EPP-ED group, broadly supports McCarthy's position on the directive, but he said is concerned that the directive should properly protect the open-source software community.

Raina Mercedes Echerer who spoke on behalf of the Green party, which stands firmly behind opponents of software patenting, told fellow MEPs that "in the market, if someone wants to use a patent to abuse a dominant position, they can do that."

Several MEPs wary of setting an EU-wide law on software patents called for a better definition of "technical effects", in order to avert bogus patents being awarded.

McCarthy and Elly Plooij-Van Gorsel both said the lobbying around the directive has been unusually intense, with both saying they have never been so aggressively lobbied.

The lobbying has split most of the large political parties down the middle, said Armelle Douaud, a spokeswoman at the Parliament. "The vote will be quite close," she said. "Too close to call."